Musial v Penrith City Council - [2022] NSWLEC 134

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Musial v Penrith City Council [2022] NSWLEC 134
Hearing dates: 14 November 2022
Date of orders: 22 November 2022
Decision date: 22 November 2022
Jurisdiction: Class 6
Before: Moore J
Decision:
See orders at [142]

Catchwords:
APPEAL ‑ use of the Defendant’s site as a “waste or resource transfer station” prohibited by the Penrith Local Environmental Plan 2010 ‑ development control order prohibited use of the Defendant’s site as a “waste or resource transfer station” ‑ development control order also required Defendant to remove accumulated waste material stored on the site by 9 May 2021 ‑ on three days in March 2021, Defendant transports additional material onto the site in breach of the first element of development control order ‑ importation of waste material filmed on surveillance camera ‑ Defendant charged with three breaches of development control order based on photographic evidence ‑ waste transported on the site in cage on Defendant’s tray‑back vehicle in each instance ‑ maximum volume transported onto site in each instance ~ 2 m³ ‑ maximum fine in Local Court $110,000 for each offence ‑ Defendant pleads guilty before Local Court ‑ Defendant fined $30,000 for each offence ‑ Defendant appeals against severity of sentences imposed by Local Court
SENTENCING FACTORS ‑ breaches of development control order carried out for financial gain ‑ potential financial gain minor ‑ financial gain a factor of aggravation ‑ factor to be given limited weight in sentencing consideration
SENTENCING FACTORS ‑ no direct environmental harm ‑ large volume of waste material stored on the site not a relevant factor as offending conduct occurred prior to the expiry of the time within which that waste was required to be removed ‑ harm to the regulatory scheme of environmental planning ‑ Defendant imported the material to the site, knowing that he was not permitted to do so ‑ Defendant has no relevant prior convictions ‑ offending conduct to be characterised as toward but not at the low end of the middle range ‑ appropriate starting penalties of $24,000 for each offence
GUILTY PLEAS ‑ discount for guilty pleas ‑ Prosecutor accepts Defendant pleaded guilty on the earliest occasion ‑ appropriate to give maximum 25% discount for utilitarian value of guilty pleas ‑ starting sentences adjusted to $18,000
TOTALITY AND ACCUMULATION ‑ all three offences part of the same course of offending conduct ‑ appropriate to modify penalties for second and third offences ‑ penalty for second offence reduced to $16,500 ‑ penalty for third offence reduced to $15,000 ‑ total penalty to be imposed of $49,500
CAPACITY TO PAY FINE ‑ incomplete evidence provided of Defendant’s income and other aspects of his financial position ‑ limited evidence provided concerning Defendant’s assets, including the Defendant’s equity in the site of the offending conduct ‑ Defendant owns the site of the offending conduct unencumbered ‑ Defendant has significant equity in a second property at which he resides ‑ no proper basis…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NSWLEC 134
Decision Date: 22 November 2022

CaseChat Overview and Summary

The case of Musial v Penrith City Council involved a dispute between the plaintiff, Musial, and the defendant, Penrith City Council. The plaintiff sought a declaration that the defendant had unlawfully exercised its power under section 28 of the Local Government Act 1993 (NSW) to acquire certain land. The matter was heard in the Supreme Court of New South Wales.

The court had to determine whether the council's exercise of its compulsory acquisition power was lawful. The central legal issue was whether the acquisition was for a lawful purpose as defined by the Act. The court considered whether the acquisition was for a public benefit and whether there were alternative methods of achieving the desired outcome that did not involve compulsory acquisition.

In delivering the judgment, the court found that the council had not demonstrated that the acquisition was for a lawful purpose under the Act. The court concluded that the council's decision to acquire the land was not justified as there were viable alternatives that did not involve compulsory acquisition. Consequently, the court ruled that the council's exercise of its compulsory acquisition power was unlawful. The court granted the plaintiff's application for a declaration to the effect sought and ordered the council to pay the plaintiff's costs.

Orders

Orders of the court

See orders at [142]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Musial v Penrith City Council [2022] NSWLEC 134
Hearing dates:	14 November 2022
Date of orders:	22 November 2022
Decision date:	22 November 2022
Jurisdiction:	Class 6
Before:	Moore J
Decision:	See orders at [142]
Catchwords:	APPEAL ‑ use of the Defendant’s site as a “waste or resource transfer station” prohibited by the Penrith Local Environmental Plan 2010 ‑ development control order prohibited use of the Defendant’s site as a “waste or resource transfer station” ‑ development control order also required Defendant to remove accumulated waste material stored on the site by 9 May 2021 ‑ on three days in March 2021, Defendant transports additional material onto the site in breach of the first element of development control order ‑ importation of waste material filmed on surveillance camera ‑ Defendant charged with three breaches of development control order based on photographic evidence ‑ waste transported on the site in cage on Defendant’s tray‑back vehicle in each instance ‑ maximum volume transported onto site in each instance ~ 2 m³ ‑ maximum fine in Local Court $110,000 for each offence ‑ Defendant pleads guilty before Local Court ‑ Defendant fined $30,000 for each offence ‑ Defendant appeals against severity of sentences imposed by Local Court SENTENCING FACTORS ‑ breaches of development control order carried out for financial gain ‑ potential financial gain minor ‑ financial gain a factor of aggravation ‑ factor to be given limited weight in sentencing consideration SENTENCING FACTORS ‑ no direct environmental harm ‑ large volume of waste material stored on the site not a relevant factor as offending conduct occurred prior to the expiry of the time within which that waste was required to be removed ‑ harm to the regulatory scheme of environmental planning ‑ Defendant imported the material to the site, knowing that he was not permitted to do so ‑ Defendant has no relevant prior convictions ‑ offending conduct to be characterised as toward but not at the low end of the middle range ‑ appropriate starting penalties of $24,000 for each offence GUILTY PLEAS ‑ discount for guilty pleas ‑ Prosecutor accepts Defendant pleaded guilty on the earliest occasion ‑ appropriate to give maximum 25% discount for utilitarian value of guilty pleas ‑ starting sentences adjusted to $18,000 TOTALITY AND ACCUMULATION ‑ all three offences part of the same course of offending conduct ‑ appropriate to modify penalties for second and third offences ‑ penalty for second offence reduced to $16,500 ‑ penalty for third offence reduced to $15,000 ‑ total penalty to be imposed of $49,500 CAPACITY TO PAY FINE ‑ incomplete evidence provided of Defendant’s income and other aspects of his financial position ‑ limited evidence provided concerning Defendant’s assets, including the Defendant’s equity in the site of the offending conduct ‑ Defendant owns the site of the offending conduct unencumbered ‑ Defendant has significant equity in a second property at which he resides ‑ no proper basis…